Judge Cronan: First Amendment “Poses No Obstacle” to New York Requiring Disclosure of X’s Content-Moderation Policies

On Wednesday, Judge Cronan dismissed with prejudice X Corp.’s complaint against Letitia James, in her official capacity as Attorney General of New York, for failure to state a claim. X Corp. alleged that the Content Category Report Provisions of New York’s Stop Hiding Hate Act, which require X to publicly disclose its content-moderation policies, violate X’s First Amendment rights.

X argued “its content-moderation policies cannot be ‘purely factual’ because they involve the exercise of its ‘discretion,’ ‘judgment,’ and ‘opinions,’” making the disclosure requirements “content-based regulations of speech subject to strict scrutiny.” Judge Cronan disagreed, finding that the law requiring X to report “purely factual and uncontroversial information” about its ​content-moderation policies was subject to the “less exacting scrutiny” applicable to purely factual speech established in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). Judge Cronan reasoned:

The question, then, is whether the Content Category Report Provisions simply require the disclosure of parts of X Corp.’s content-moderation policies, or of X Corp.’s opinions about and reasons for its policies. The answer, under the Act’s plain text, is the former. The Content Category Report Provisions require a “statement of whether the current version of the terms of service defines” content categories like hate speech, racism, disinformation, or misinformation at all, and “if so,” what the company’s “definitions of those categories” are. GBL § 1102(1)(c). On its face, then, Section 1102(1)(c) does not require a platform to affirmatively define these terms if it does not already have a definition, nor does the provision require a platform to explain the reasons for, or otherwise opine on, any definition it may have. It simply requires the social-media company to explain what, if any, definition of those content categories the company uses.

Applying the Zauderer standard, Judge Cronan found that New York’s disclosure requirements were “reasonably related” to its interest in “ensur[ing] that users are fully informed about the terms of their engagement with a social media network, enabling them to make more informed choices about where they spend their screen time and how to interpret the content they find on a given social media network.” Judge Cronan dismissed X’s claim without leave to amend.